Title 210—APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE [ 210 PA. CODE CHS. 3, 9, 17 AND 19 ] Proposed Amendments to Rules of Appellate Procedure 341, 903, 904, 1701 and 1931 [41 Pa.B. 4529]
[Saturday, August 20, 2011]The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 341, 903, 904, 1701 and 1931. These amendments are being submitted for public comments and suggestions prior to their submission to the Supreme Court.
Proposed new material is bold while deleted material is bracketed and bold.
All communications in reference to the proposed amendment should be sent no later than Oct 4, 2011 to:
Dean R. Phillips, Counsel
D. Alicia Hickok, Deputy Counsel
Scot R. Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
PO Box 62635
Harrisburg, PA 17106-2635
or Fax to 717-231-9551
or E-Mail to appellaterules@pacourts.usAn Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.
By the Appellate Court
Procedural Rules CommitteeHONORABLE RENÉE COHN JUBELIRER,
ChairAnnex A TITLE 210. APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE ARTICLE I. PRELIMINARY PROVISIONS CHAPTER 3. ORDERS FROM WHICH
APPEALS MAY BE TAKENFINAL ORDERS Rule 341. Final Orders; Generally.
* * * * * Explanatory Comment—2011 Under the Pennsylvania Rules of Civil Procedure, once post-trial motions are determined or deemed denied, there is a final and appealable order. Despite the language in Pa.R.C.P. No. 227.4(1)(b) (''A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration''), trial courts do in fact leave issues unresolved at the time they determine post-trial motions, and the Supreme Court has recognized that when the trial court finally does resolve those issues, the trial court has effectively issued a second (or subsequent) final order. See Miller Electric Co. v. DeWeese, 589 Pa. 167, 907 A.2d 1051 (2006). Moreover, there are times when parties file requests for relief in the trial court after an appeal has been taken. By entering a final order that disposes of all claims and all parties—whether upon post-trial motions, preliminary objections, judgment on the pleadings or summary judgment—a trial court has been divested of jurisdiction to resolve any matters on that docket except (a) ministerial corrections or (b) matters necessary to give effect to the already-entered orders, e.g., contempt. See Pa.R.A.P. 1701. As a result, pending or subsequent motions for attorneys' fees would need to languish in the trial court until the case is remanded to it. Under the procedure set forth in Rule 1701(b)(5), if an appellate court determines that it will promote fairness or judicial economy to consider the matters on appeal together with any matters that are pending in the trial court, the appellate court may remand for resolution of those matters while retaining jurisdiction over the initial appeal.
ARTICLE II. APPELLATE PROCEDURE CHAPTER 9. APPEALS FROM LOWER COURTS Rule 903. Time for Appeal.
* * * * * Explanatory Comment—2011 If an appellate court has remanded to a trial court with directions for a trial court to resolve an issue that remained unresolved at the time an appeal was taken or that was raised to the trial court after the appeal was taken, a new notice of appeal needs to be filed within 30 days of the entry of the trial court's order resolving the outstanding issue. As an example, a trial court may have ruled on post-trial motions without determining attorneys' fees. While the judgment became final (and thus an appeal had to be taken in order to be timely) at the time the post-trial motions were ruled on (or deemed denied), the appellate court may conclude that it serves the interests of fairness or judicial economy to resolve any questions resulting from an award or denial of an award of attorneys' fees at the same time. If so, the appellate court will remand so that the trial court can determine the attorneys' fees, but it will not relinquish jurisdiction over the original appeal. Any (or all) parties may be aggrieved by the order on attorneys' fees. In order for the appellate court to hear an appeal of the order on attorneys' fees, the party(ies) aggrieved must file new notice(s) of appeal.
Rule 904. Content of the Notice of Appeal.
* * * * * (d) Docket [entry] entries.—The notice of appeal shall include a statement that the order appealed from has been entered in the docket and it shall identify any motions or other requests for relief that are still pending in the trial court. A copy of the docket [entry] entries showing the entry of the order appealed from and the pending requests for relief shall be attached to the notice of appeal.
* * * * * CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS IN GENERAL Rule 1701. Effect of Appeal Generally.
(a) General rule.—Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter. As a result, if a party has an unresolved request for relief pending in the trial court, or if a party files for relief once a notice of appeal has been filed from an order that disposes of all claims and all parties, the trial court has no authority to resolve those requests unless they come within the exceptions provided for in this rule or as permitted by 42 Pa.C.S. § 5505 (related to modification of orders), and any order issued by a trial court that is not within those exceptions is null and void.
(b) Authority of a trial court or agency after appeal.—After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:
* * * * * (2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter. The authority to enforce an order permits a trial court to enter sanctions for conduct arising after entry of judgment.
* * * * * (5) Take any action directed or authorized [on application] by the appellate court. If an appellate court remands so that the trial court can consider an unresolved request for relief in the trial court, the trial court's order resolving that request for relief must also inform the parties that, if any party(ies) are aggrieved by that order, a notice of appeal from that order must be filed within 30 days after the entry of the order on the docket.
* * * * * Official Note: The following statutory provisions relate to supersedeas generally:
* * * * * Under the 1996 amendments to the Rules of Criminal Procedure governing post-sentence practice, see Pa.R.Crim.P. 720 and 721, reconsideration of a decision on a defendant's post-sentence motion or on a Commonwealth motion to modify sentence must take place within the time limits set by those rules, and the judge may not vacate sentence or ''grant reconsideration'' pursuant to subdivision (b)(3) in order to extend the time limits for disposition of those motions. The amendments to Pa.R.Crim.P. 720 and new Pa.R.Crim.P. 721 resolve questions raised about the interplay between this subdivision and post-trial criminal practice. See, e.g., Commonwealth v. Corson, 444 A.2d 170 (Pa. Super, 1982).
Subdivision (a) provides that, when an appeal is taken from a final order that disposes of all claims and of all parties the trial court is divested of jurisdiction to act on a variety of motions that may remain pending, including those seeking relief such as non-contractual prejudgment interest, costs, delay damages or attorneys' fees and costs. When any such motions would remain pending after an appeal from a final judgment, Rule 904(d) requires that those motions be identified in the notice of appeal so that the appellate court has notice that they are still pending. The appellate court can then decide whether to proceed with the appeal or to remand to the trial court for resolution of any pending motions while retaining jurisdiction. Contractual prejudgment interest is excepted from the general rule that a notice of appeal from a final judgment divests the trial court of jurisdiction because such interest is a legal right and the correction of the judgment is correction of a formal error in the papers and is thus within the scope of subdivision (b)(1). Fernandez v. Levin, 519 Pa. 375, 379-80, 548 A.2d 1191, 1193 (1988); Metro. Edison Co. v. Old Home Manor, Inc., 334 Pa. Super. 25, 30-32, 482 A.2d 1062, 1064-1065 (1988). The trial court is not divested of jurisdiction when appealed orders are interlocutory or collateral and thus do not dispose of all claims and of all parties. Nonetheless, in such cases, Rule 1701(c) may still restrict the issues as to which the trial court may act. The 2011 amendment to Rule 1701 could lead to a different result in Miller Electric Co. v. DeWeese, 589 Pa. 167, 907 A.2d 1051 (2006) and cases that followed that decision, such as Old Forge School District v. Highmark, Inc., 592 Pa. 307, 317, 924 A.2d 1205, 1211 (2007), because under the Rule as amended, a trial court could not decide attorneys' fees while the underlying case was on appeal unless the appellate court had issued a limited remand for that purpose.
CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS RECORD ON APPEAL FROM LOWER COURT Rule 1931. Transmission of the Record.
* * * * * (d) Service of the list of record documents.—[The] When the record is sent to the appellate court, the clerk of the lower court shall[, at the time of the transmittal of the record to the appellate court, mail] send a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.
(e) Multiple or already pending appeals.—[Where more than one appeal is taken from the same order, it shall be sufficient to transmit a single record, without duplication.] If the trial court sends the record to an appellate court and further notices of appeal have been or are filed while the appeal is pending, the trial court does not need to replicate the record transmitted pursuant to the first notice of appeal. Only the record postdating the first transmission needs to be sent.
EXPLANATORY COMMENT The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 341, 903, 904, 1701 and 1931. Under the Pennsylvania Rules of Civil Procedure, once post-trial motions are determined or deemed denied, there is a final and appealable order. Despite the language in Pa.R.C.P. No. 227.4(1)(b) (''A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration''), trial courts do in fact leave issues unresolved at the time they determine post-trial motions, and the Supreme Court has recognized that when the trial court finally does resolve those issues, the trial court has effectively issued a second (or subsequent) final order. See Miller Electric Co. v. DeWeese, 589 Pa. 167, 907 A.2d 1051 (2006). The same possibility of multiple final orders exists if a trial court grants preliminary objections, judgment on the pleadings, or summary judgment.
In addition to motions pending when a notice of appeal is filed, parties at times file requests for relief in the trial court after an appeal has been taken. Unless the request is for a ministerial correction to the judgment or is asking the trial court to enforce or otherwise ensure that effect is given to already-entered orders (such as by entering an order of contempt), the trial court is without jurisdiction to act on pending or newly-filed requests for relief, unless the appellate court expressly remands for the court to consider such motions. See Pa.R.A.P. 1701. As a result, pending or subsequent motions for—for example—attorneys' fees would need to languish in the trial court until the case is remanded to it. Under the procedure set forth in Rule 1701(b)(5), however, if an appellate court determines that it will promote fairness or judicial economy to consider the matters on appeal together with any matters that are pending in the trial court, the appellate court may remand for resolution of those matters while retaining jurisdiction over the initial appeal. These amendments are designed to clarify this procedure and to ensure that the appellate court has notice of outstanding requests for relief, because, obviously, an appellate court cannot remand for determination of a request for relief it does not know exists.
Suggested new language is bold; suggested deletions are bold and in brackets.
[Pa.B. Doc. No. 11-1417. Filed for public inspection August 19, 2011, 9:00 a.m.]
